REPARATION FOR INJURIES SUFFERED IN THE SERVICE

OF THE UNITED NATIONS

Advisory Opinion of 11 April 1949
The question concerning reparation for injuries suffered in the service of the United
Nations, was referred to the Court by the General Assembly of the United Nations
(Resolution of the General Assembly dated December 3rd, 1948) in the following terms:
"I. In the event of an agent of the United Nations in the performance of his duties suffering
injury in circumstances involving the responsibility of a State, has the United Nations, as
an Organization, the capacity to bring an international claim against the responsible de jure
or de facto government with a view to obtaining the reparation due in respect of the
damage caused (a) to the United Nations, (b) to the victim or to persons entitled through
him?
"II. In the event of an affirmative reply on point I (b), how is action by the United Nations
to be reconciled with such rights as may be possessed by the State of which the victim is a
national?"
With respect to questions I (a) and I (b), the Court established a distinction according to
whether the responsible State is a Member or not of the United Nations. The Court
unanimously answered question I (a) in the affirmative. On question I (b) the Court was of
opinion by 11 votes against 4 that the Organization has the capacity to bring an
international claim whether or not the responsible State is a Member of the United Nations.
Finally, on point II, the Court was of opinion by 10 votes against 5 that when the United
Nations as an organization is bringing a claim for reparation for damage caused to its
agent, it can only do so by basing its claim upon a breach of obligations due to itself;
respect for this rule will usually prevent a conflict between the action of the United Nations
and such rights as the agent's national State may possess; moreover, this reconciliation
must depend upon considerations applicable to each particular case, and upon agreements
to be made between the Organization and individual States.
The dissenting Judges appended to the Opinion either a declaration or a statement of the
reasons for which they cannot concur in the Opinion of the Court. Two other Members of
the Court, while concurring in the Opinion, appended an additional statement.
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In its Advisory Opinion, the Court begins by reciting the circumstances of the procedure.
The Request for Opinion was communicated to all States entitled to appear before the
Court; they were further informed that the Court was prepared to receive information from
them. Thus, written statements were sent by the following States: India, China, United
States of America, United Kingdom of Great Britain and Northern Ireland and France. In
addition, oral statements were presented before the Court by a representative of the
Secretary-General of the United Nations, assisted by counsel, and by the representatives of
the Belgian, French and United Kingdom Governments.
Then the Court makes a number of preliminary observations on the question submitted to
it. It proceeds to define certain terms in the Request for Opinion, then it analyses the
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contents of the formula: "capacity to bring an international claim". This capacity certainly
belongs to a State. Does it also belong to the Organization? This is tantamount to asking
whether the Organization has international personality. In answering this question which is
not settled by the actual terms of the Charter, the Court goes on to consider what
characteristics the Charter was intended to give to the Organization. In this connection, the
Court states that the Charter conferred upon the Organization rights and obligations which
are different from those of its Members. The Court stresses, further, the important political
tasks of the Organization: the maintenance of international peace and security. Accordingly
the Court concludes that the Organization possessing as it does rights and obligations, has
at the same time a large measure of international personality and the capacity to operate
upon an international plane, although it is certainly not a super-State.
The Court then examines the very heart of the subject, namely, whether the sum of the
international rights of the Organization comprises the right to bring an international claim
to obtain reparation from a State in respect of the damage caused by the injury of an agent
of the Organization in the course of the performance of his duties.
On the first point, I (a), of the Request for Opinion the Court unanimously reaches the
conclusion that the Organization has the capacity to bring an international claim against a
State (whether a Member or non-member) for damage resulting from a breach by that State
of its obligations towards the Organization. The Court points out that it is not called upon
to determine the precise extent of the reparation which the Organization would be entitled
to recover; the measure of the reparation should depend upon a number of factors which
the Court gives as examples.
Then the Court proceeds to examine question I (b), namely, whether the United Nations, as
an Organisation, has the capacity to bring an international claim with a view to obtaining
the reparation due in respect of the damage caused, not to the Organization itself, but to the
victim or to persons entitled through him.
In dealing with this point the Court analyses the question of diplomatic protection of
nationals. The Court points out in this connection that really only the Organization has the
capacity to present a claim in the circumstances referred to, inasmuch as at the basis of any
international claim there must be a breach by the defendant State of an obligation towards
the Organization. In the present case the State of which the victim is a national could not
complain of a breach of an obligation towards itself. Here the obligation is assumed in
favour of the Organization. However, the Court admits that the analogy of the traditional
rule of diplomatic protection of nationals abroad does not in itself justify an affirmative
reply. In fact, there exists no link of nationality between the Organization and its agents.
This is a new situation and it must be analysed. Do the provisions of the Charter relating to
the functions of the Organization imply that the latter is empowered to assure its agents
limited protection? These powers, which are essential to the performance of the functions
of the Organisation, must be regarded as a necessary implication arising from the Charter.
In discharging its functions, the Organization may find it necessary to entrust its agents
with important missions to be performed in disturbed parts of the world. These agents must
be ensured of effective protection. It is only in this way that the agent will be able to carry
out his duties satisfactorily. The Court therefore reaches the conclusion that the
Organization has the capacity to exercise functional protection in respect of its agents. The
situation is comparatively simple in the case of Member States, for these have assumed
various obligations towards the Organization.
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But what is the situation when a claim is brought against a State which is not a Member of
the Organization? The Court is of opinion that the Members of the United Nations created
an entity possessing objective international personality and not merely personality
recognized by them alone. As in the case of Question I (a), the Court therefore answers
Question I (b) in the affirmative.
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Question No. II of the General Assembly refers to the reconciliation of action by the
United Nations with such rights as may be possessed by the State of which the victim is a
national. In other words, what is involved is possible competition between the rights of
diplomatic protection on the one hand and functional protection on the other. The Court
does not state here which of these two categories of protection should have priority and in
the case of Member States it stresses their duty to render every assistance provided by
Article 2 of the Charter. It adds that the risk of competition between the Organization and
the national State can be reduced or eliminated either by a general convention or by
agreements entered into in each particular case, and it refers further to cases that have
already arisen in which a practical solution has already been found.
Finally, the Court examines the case in which the agent bears the nationality of the
defendant State. Since the claim brought by the Organization is not based upon the
nationality of the victim but rather upon his status as an agent of the Organization, it does
not matter whether or not the State to which the claim is addressed regards him as its own
national. The legal situation is not modified thereby.